Measures for the Administration of Lease Financing Companies
金融租赁公司管理办法
The China Bank Regulatory Commission is reviewing applications by five commercial banks to establish finance leasing companies. How will this new business vehicle impact the Chinese finance leasing landscape?
Repealed on March 13 2014: http://www.chinalawandpractice.com/Article/3340749/Measures-for-the-Administration-of-Lease-Financing.html
Order of the CBRC [2007] No.1
(中国银行业监督管理委员会于二零零七年一月二十三日公布,自二零零七年三月一日起施行。)
PART ONE: GENERAL PROVISIONS
Article 1: These Measures have been formulated pursuant to laws and regulations such as the PRC Banking Regulation Law and PRC Company Law in order to promote the healthy development of the lease financing sector in China and strengthen the oversight of lease financing companies.
银监会令 [2007] 第1号
Article 2: For the purposes of these Measures, the term "lease financing company" means a non-bank financial institution approved by the China Banking Regulatory Commission that principally engages in the lease financing business.
A lease financing company shall have the words "lease financing" in its name. Without the approval of the China Banking Regulatory Commission, no work unit or individual may engage in lease financing or use the words "financial leasing" in its name, unless otherwise provided in laws or regulations.
第一章总 则
Article 3: For the purposes of these Measures, the term "lease financing" means the business activity wherein a lessor, based on the selection or acceptance by the lessee of the leased thing and the supplier thereof, leases in accordance with a contract the leased thing obtained from the supplier to the lessee for the latter's possession and use and for which it charges rent to the lessee.
The leased things to which lease financing transactions apply shall be fixed assets.
第一条为促进我国融资租赁业的健康发展,加强对金融租赁公司的监督管理,根据《中华人民共和国银行业监督管理法》、《中华人民共和国公司法》等法律法规,制定本办法。
Article 4: For the purposes of these Measures, the term "sale-leaseback" means a form of lease financing wherein the lessee sells its own thing to the lessor and executes a lease financing contract with the lessor under which it leases back the thing from the lessor. Sale-leaseback is a form of lease financing wherein the lessee and the supplier are the same party.
Article 5: For the purposes of these Measures, the terms "affiliated relationship" and "affiliated transaction" mean an affiliated relationship and affiliated transaction as defined in relevant enterprise accounting standards.
第二条本办法所称金融租赁公司,是指经中国银行业监督管理委员会批准,以经营融资租赁业务为主的非银行金融机构。
Article 6: The China Banking Regulatory Commission and its agencies shall oversee lease financing companies in accordance with the law.
PART TWO: ESTABLISHMENT OF, CHANGES TO, AND TERMINATION OF BUSINESS OF, AN INSTITUTION
金融租赁公司名称中标明“金融租赁”字样。未经中国银行业监督管理委员会批准,任何单位和个人不得经营融资租赁业务或在其名称中使用“金融租赁”字样,但法律法规另有规定的除外。
Article 7: To apply to establish a lease financing company, the following conditions shall be satisfied:
(1) having investors that comply herewith;
第三条本办法所称融资租赁,是指出租人根据承租人对租赁物和供货人的选择或认可,将其从供货人处取得的租赁物按合同约定出租给承租人占有、使用,向承租人收取租金的交易活动。
(2) having the minimum registered capital complying herewith;
(3) having articles of association that comply with the PRC Company Law and these Measures;
适用于融资租赁交易的租赁物为固定资产。
(4) having directors and senior management personnel with qualifications for their positions that comply with the provisions of the China Banking Regulatory Commission, and qualified professional personnel who are familiar with lease financing;
(5) having sound corporate governance, internal control, business operation, risk prevention and other such systems;
(6) having an up-to-standard place of business, security measures and other facilities for the business; and
第四条本办法所称售后回租业务,是指承租人将自有对象出卖给出租人,同时与出租人签定融资租赁合同,再将该物件从出租人处租回的融资租赁形式。售后回租业务是承租人和供货人为同一人的融资租赁方式。
(7) other conditions as specified by the China Banking Regulatory Commission.
Article 8: The investors in lease financing companies are divided into major investors and ordinary investors. The term "major investor" means an investor whose capital contribution will account for at least 50% of the registered capital of the lease financing company to be established. The term "ordinary investor" means an investor other than the major investor.
When a lease financing company is to be established, the major investor shall be the applicant and submit the application to the China Banking Regulatory Commission.
Article 9: The major investor in a lease financing company shall satisfy one of the conditions set forth below:
第五条本办法所称关联方关系及关联交易,是指符合有关企业会计准则规定的关联方关系及关联交易。
(1) being a commercial bank with independent legal personality that is registered in China or abroad, and that satisfies the following conditions:
(i) having a capital adequacy ratio that satisfies the requirements of the financial regulator of the place where it is registered and that is not less than 8%;
(ii) having assets of not less than Rmb80 billion or the equivalent in a freely convertible currency as at the end of the most recent year;
(iii) having been profitable for the two most recent years in succession;
第六条中国银行业监督管理委员会及其派出机构依法对金融租赁公司实施监督管理。
(iv) complying with the laws and regulations of the place where it is registered, and not having been involved in a major case or committed a major violation of laws or regulations during the most recent two years;
(v) having a good corporate governance structure, internal control mechanisms and a sound risk management system; and
(vi) other prudential conditions as specified by the China Banking Regulatory Commission;
第二章机构设立、变更与终止
(2) being a lease company registered in China or abroad, and satisfying the following conditions:
(i) having assets of not less than Rmb10 billion or the equivalent in a freely convertible currency as at the end of the most recent year;
(ii) having been profitable for the two most recent years in succession; and
第七条申请设立金融租赁公司应具备下列条件:
(iii) complying with the laws and regulations of the place where it is registered, and not having been involved in a major case or committed a major violation of laws or regulations during the most recent two years;
(3) being a large enterprise registered in China whose core business is the manufacture of products suitable for lease financing transactions, and satisfying the following conditions:
(i) having an operating revenue of not less than Rmb5 billion or the equivalent in a freely convertible currency in the most recent year;
(一) 具有符合本办法规定的出资人;
(ii) having been profitable for the two most recent years in succession;
(iii) having a net asset ratio of not less than 30% as at the end of the most recent year;
(二) 具有符合本办法规定的最低限额注册资本;
(iv) sales revenue from its core business accounting for at least 80% of its entire operating revenue;
(v) having a good credit record; and
(三) 具有符合《中华人民共和国公司法》和本办法规定的章程;
(vi) complying with the laws and regulations of the place where it is registered, and not having been involved in a major case or committed a major violation of laws or regulations during the most recent two years; or
(4) being another financial institution recognized by the China Banking Regulatory Commission as being eligible to serve as major investor.
(四) 具有符合中国银行业监督管理委员会规定的任职资格条件的董事、高级管理人员和熟悉融资租赁业务的合格从业人员;
Article 10: Ordinary investors in a lease financing company shall comply with relevant provisions of the China Banking Regulatory Commission on the investment and taking an equity interest in financial institutions. An investor that satisfies the conditions for being a major investor as specified herein may serve as an ordinary investor in a lease financing company.
Article 11: The minimum registered capital of a lease financing company shall be Rmb100 million or the equivalent in a freely convertible currency. Registered capital shall be paid-in monetary capital.
Based on the development requirements of the lease financing sector, the China Banking Regulatory Commission may revise the minimum registered capital requirement of a lease financing company.
(五) 具有完善的公司治理、内部控制、业务操作、风险防范等制度;
Article 12: The establishment of a lease financing company shall take place in two stages, preparation and commencement of business. The Chinese language versions of the application materials for preparation for establishment and for commencement of business submitted by an applicant shall prevail. The acceptance of materials and the examination and approval procedure shall be handled in accordance with the implementing provisions of the China Banking Regulatory Commission concerning administrative licensing matters.
Article 13: When applying for preparation for the establishment of a lease financing company, the applicant shall submit the following documents:
(六) 具有合格的营业场所、安全防范措施和与业务有关的其它设施;
(1) a written application for preparation for establishment, which shall specify the name, place of registration and registered capital of the proposed lease financing company, its investors and their capital contributions, its scope of business, etc.;
(2) a feasibility study report, which shall include an analysis of the proposed company's market prospects, its future business development plans, its organizational and management structure, an analysis of its risk control capabilities, forecasts of the size of the company's assets, liabilities and profits three years after it has commenced business, etc.;
(七) 中国银行业监督管理委员会规定的其它条件。
(3) (a draft of) the articles of association of the proposed lease financing company;
(4) the basic particulars of the investors, including their names, legal representatives, registered addresses, photocopies of their business licences, their business positions and the capital contribution agreement; if an investor is a foreign financial institution, an opinion issued by the financial regulator of the place where it is registered shall be submitted;
(5) the annual audit reports of the investors for the most recent two years audited by a qualified intermediary organization; and
第八条金融租赁公司的出资人分为主要出资人和一般出资人。主要出资人是指出资额占拟设金融租赁公司注册资本50%以上的出资人。一般出资人是指除主要出资人以外的其它出资人。
(6) other documents as required by the China Banking Regulatory Commission.
Article 14: Once the preparatory work for the establishment of a lease financing company has been completed, the lease financing company shall apply to the China Banking Regulatory Commission for commencement of business and submit the following documents:
(1) a report on the preparatory work and an application to commence business;
(2) a capital verification certificate issued by a qualified domestic intermediary organization and the pre-approved registration certificate for the name of the proposed lease financing company issued by the administration for industry and commerce;
(3) the register of shareholders and their capital contributions and capital contribution percentages;
设立金融租赁公司,应由主要出资人作为申请人向中国银行业监督管理委员会提出申请。
(4) the lease financing company's articles of association, which shall, at minimum, specify the following: the institution's name, business address, nature, registered capital, scope of business, organizational form, and matters concerning operations, management, suspension of business, liquidation, etc.;
(5) a list of the proposed senior management personnel, their detailed résumés and proof of their qualifications for their positions;
(6) the rules and regulations for the proposed business and the risk control system;
第九条金融租赁公司主要出资人应符合下列条件之一:
(7) information on the place of business and the other facilities for the business; and
(8) other documents as required by the China Banking Regulatory Commission.
Article 15: With the approval of the China Banking Regulatory Commission, a lease financing company may establish branches and sub-branches. The specific conditions for the establishment of branches and sub-branches shall be specified separately by the China Banking Regulatory Commission.
(一) 中国境内外注册的具有独立法人资格的商业银行,还应具备以下条件:
Article 16: The China Banking Regulatory Commission subjects the directors and senior management personnel of lease financing companies to a system for the approval of their qualifications for their positions.
Article 17: If a lease financing company is to undergo any of the following changes, the approval of the China Banking Regulatory Commission shall be required:
(1) change in name;
1. 资本充足率符合注册地金融监管机构要求且不低于8%;
(2) change in organizational form;
(3) revision of scope of business;
2. 最近1年年末资产不低于800亿元人民币或等值的自由兑换货币;
(4) change in registered capital;
(5) change in equity;
(6) amendment of articles of association;
3. 最近2年连续盈利;
(7) change in place of registration or place of business;
(8) change in directors or senior management personnel;
(9) merger or division; or
4. 遵守注册地法律法规,最近2年内未发生重大案件或重大违法违规行为;
(10) another change as specified by the China Banking Regulatory Commission.
Article 18: With the approval of the China Banking Regulatory Commission a lease financing company may be dissolved if:
(1) the term of operations specified in its articles of association expires or another reason for dissolution as specified in its articles of association arises;
(2) the shareholders' (general) meeting resolves to dissolve it;
5. 具有良好的公司治理结构、内部控制机制和健全的风险管理制度;
(3) it needs to be dissolved due to a merger or division;
(4) it has its business licence revoked in accordance with the law, is ordered to close down or is closed down in accordance with the law; or
(5) another statutory reason.
6. 中国银行业监督管理委员会规定的其它审慎性条件。
Article 19: With the approval of the China Banking Regulatory Commission, a lease financing company may file for bankruptcy with a court if:
(1) it is insolvent and it voluntarily files for bankruptcy or is required to file for bankruptcy by its creditors; or
(二) 中国境内外注册的租赁公司,还应具备以下条件:
(2) it is being liquidated after being dissolved or closed down, the liquidation committee discovers that its property is insufficient to discharge its debts and it is required to file for bankruptcy.
Article 20: When a lease financing company is insolvent and its assets are insufficient to discharge all of its debts or it clearly lacks the capacity to discharge the same, the China Banking Regulatory Commission may file a petition with the people's court for the restructuring or the bankruptcy and liquidation of such company.
Article 21: If the business of a lease financing company is terminated due to the company being dissolved, being closed down in accordance with the law or being declared bankrupt, the liquidation thereof shall be handled in accordance with relevant state laws and regulations.
1. 最近1年年末资产不低于100亿元人民币或等值的自由兑换货币;
PART THREE: SCOPE OF BUSINESS
Article 22: With the approval of the China Banking Regulatory Commission, a lease financing company may engage in some or all of the following businesses in renminbi and foreign currencies:
(1) lease financing;
2. 最近2年连续盈利;
(2) taking shareholder term deposits of one year or more;
(3) accepting lease deposits from lessees;
(4) transferring rents receivables to commercial banks;
3. 遵守注册地法律法规,最近2年内未发生重大案件或重大违法违规行为。
(5) offering financial bonds following approval;
(6) interbank lending;
(7) borrowing from financial institutions;
(8) foreign exchange borrowing abroad;
(三) 在中国境内注册的、主营业务为制造适合融资租赁交易产品的大型企业,还应具备以下条件:
(9) sale and disposal of leased products for their residual value;
(10) economic consulting; and
(11) other businesses as approved by the China Banking Regulatory Commission.
1. 最近1年的营业收入不低于50亿元人民币或等值的自由兑换货币;
Article 23: A lease financing company may not take deposits from bank shareholders.
Article 24: If the business engaged in by a lease financing company involves foreign exchange control matters, it shall comply with relevant state provisions on foreign exchange control.
PART FOUR: OPERATING RULES
2. 最近2年连续盈利;
Article 25: The corporate governance of a lease financing company shall be established as an organizational structure consisting of main bodies such as a shareholders' (general) meeting, board of directors, supervisory board, senior management, etc., specify the division of duties among them and ensure that they each operate independently and effectively check and balance each other so as to give rise to a scientific and effective decision-making, incentive and restraint mechanism.
Article 26: A lease financing company shall establish and enhance its internal control systems based on the principles of comprehensiveness, prudence, effectiveness and independence and submit details of the same to the China Banking Regulatory Commission or its agency for the record.
Article 27: The affiliated transactions of a lease financing company shall be conducted in accordance with commercial principles and on terms that are no more favorable than those offered to non-affiliated parties for the same type of transaction.
3. 最近1年年末净资产率不低于30%;
Article 28: A lease financing company shall formulate rules and regulations for the management of affiliated transactions that shall specifically provide for the following:
(1) oversight of affiliated transactions by the board of directors or the business decision-making body;
(2) the duties and composition of the affiliated transaction control committee;
4. 主营业务销售收入占全部营业收入的80%以上;
(3) collection and management of affiliated parties' information;
(4) the reporting and undertaking system and the identification and confirmation system for affiliated parties;
5. 信用记录良好;
(5) the types of, and pricing policy for, affiliated transactions and the examination and approval procedures and standards;
(6) the recusation system;
6. 遵守注册地法律法规,最近2年内未发生重大案件或重大违法违规行为。
(7) internal audit supervision;
(8) information disclosure;
(9) penalty measures; and
(四) 中国银行业监督管理委员会认可的可以担任主要出资人的其它金融机构。
(10) other provisions as required by the China Banking Regulatory Commission.
Article 29: The material affiliated transactions of a lease financing company shall require the approval of its board of directors. The term "material affiliated transaction" means a single transaction between a lease financing company and an affiliated party the value of which is equivalent to at least 5% of the lease financing company's net capital, or, after the occurrence of a transaction between the lease financing company and an affiliated party, transactions with such affiliated party the balance of which is equivalent to at least 10% of the lease financing company's net capital.
Article 30: When the board of directors of a lease financing company, or, for a lease financing company that does not have a board of directors, the business decision-making body and the affiliated transaction control committee vote or decide on a affiliated transaction, the person(s) with the affiliated relationship to the affiliated transaction shall recuse himself/herself/themselves.
第十条金融租赁公司一般出资人应符合中国银行业监督管理委员会投资入股金融机构相关规定。符合本办法主要出资人条件的出资人可以担任金融租赁公司的一般出资人。
Article 31: A sale-leaseback must have a definite subject matter, and the subject matter shall comply with the provisions hereof.
Article 32: The subject matter of a sale-leaseback must be genuinely owned by the lessee and it must have the right to dispose of the same. A lease financing company may not accept, as the subject matter of a sale-leaseback, property that has been mortgaged, over which there is a dispute as to title, that has been placed under seal or seized by the judicial authorities, or the ownership of which is otherwise defective.
Article 33: The price paid by a lease financing company to purchase the subject matter of a sale-leaseback shall have as reference a reasonable pricing basis that does not violate accounting standards. The purchase of a thing of low value at a high price is prohibited.
Article 34: A lease financing company that engages in sale-leaseback shall genuinely have obtained ownership of the subject matter. If the subject matter falls within the category of property that state laws and regulations specify require registration with the registration department of the transfer of title thereto, the lease financing company shall carry out the relevant registration procedure.
PART FIVE: OVERSIGHT
第十一条金融租赁公司的最低注册资本为1亿元人民币或等值的自由兑换货币,注册资本为实缴货币资本。
Article 35: A lease financing company shall comply with the following regulatory indicators:
(1) capital adequacy ratio: the net capital of a lease financing company may not be less than 8% of its risk-weighted assets;
(2) degree of financing exposure to a single customer: the balance of a lease financing company's financing to a single lessee may not exceed 30% of its net capital; when calculating the balance of the financing to a customer, the deposit provided by the lessee at the time of granting the financing may be deducted;
(3) degree of affiliation with a single customer: the balance of a lease financing company's financing to an affiliated party may not exceed 30% of its net capital;
中国银行业监督管理委员会根据融资租赁业发展的需要,可以调整金融租赁公司的最低注册资本限额。
(4) degree of affiliation with a group of customers: the balance of a lease financing company's financing to all of its affiliated parties may not exceed 50% of its net capital;
(5) interbank lending ratio: the balance of a lease financing company's interbank borrowing may not exceed 100% of its net capital.
The China Banking Regulatory Commission may, depending on regulatory requirements, appropriately revise the foregoing indicators.
Article 36: A lease financing company shall disclose information in accordance with relevant enterprise accounting standards and the relevant provisions of the China Banking Regulatory Commission.
第十二条金融租赁公司的设立需经过筹建和开业两个阶段。申请人提交的申请筹建、申请开业的数据,以中文文本为准。数据受理及审批程序按照中国银行业监督管理委员会有关行政许可事项实施规定执行。
Article 37: A lease financing company shall implement the classification system of five-class risk assets.
Article 38: A lease financing company shall formulate a bad debt reserve system in accordance with relevant regulations and make allocations to such reserve in full and on time. If it fails to make sufficient allocations to such reserve, it may not distribute profits.
Article 39: A lease financing company shall, in accordance with provisions, prepare and submit to the China Banking Regulatory Commission balance sheets, profit and loss statements and other statements as required by the China Banking Regulatory Commission. The legal representative and direct handling person of the lease financing company shall be legally liable for the truthfulness of the submitted statements.
Article 40: Within four months after the end of each financial year, a lease financing company shall submit to the China Banking Regulatory Commission or the relevant agency thereof a report on its affiliated transactions during the preceding year. The report shall include the affiliated parties, types of transactions, amounts and subject matters of the transactions, the transaction prices and pricing methods, the gains and losses on the transactions, the nature and percentage of the rights and interests accounted for by the affiliated parties in the transactions, etc.
Article 41: A lease financing company shall establish a periodic external audit system and, within four months after the end of each financial year, submit an annual audit report signed in confirmation by its legal representative to the China Banking Regulatory Commission and the relevant agency thereof.
Article 42: If a lease financing company violates relevant provisions hereof, the China Banking Regulatory Commission may order it to rectify the matter within a specified period of time. If it fails to rectify the matter within the specified period of time, or if the violation seriously threatens its stable operation or seriously harms the lawful rights and interests of customers, the China Banking Regulatory Commission may, depending on the circumstances, take regulatory measures such as ordering it to suspend operations and restricting shareholder rights in accordance with laws and regulations such as the PRC Banking Regulation Law.
Article 43: If a credit crisis has occurred or could occur in a lease financing company, seriously affecting the lawful rights and interests of customers, the China Banking Regulatory Commission shall, in accordance with the law, entrust the management of the lease financing company to a third party or urge it to undergo restructuring. If the issue is serious, the China Banking Regulatory Commission shall have the right to close it down.
第十三条申请筹建金融租赁公司,申请人应当提交下列文件:
Article 44: The China Banking Regulatory Commission shall impose penalties for violations of relevant provisions hereof in accordance with laws and regulations such as the PRC Banking Regulation Law. If a lease financing company objects to a penalty decision rendered by the China Banking Regulatory Commission, it may, in accordance with the law, apply for administrative review or institute an administrative action with the people's court.
PART SIX: SUPPLEMENTARY PROVISIONS
Article 45: The China Banking Regulatory Commission is in charge of interpreting these Measures.
Article 46: These Measures shall be effective as of
March 1 2007.
(一) 筹建申请书,内容包括拟设立金融租赁公司的名称、注册所在地、注册资本金、出资人及各自的出资额、业务范围等;
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